Let me state a certainty. Late Anglo-Saxon England was a nation-state. It was an entity with effective central authority, uniformly organized institutions, a national language, a national church, defined frontiers (admittedly with considerable fluidity in the north), and, above all, a strong sense of national identity.
—JAMES CAMPBELL, 2000
The English law existed not to control the individual but to free him.
—ROGER SCRUTON, 2006
WHO ARE THE ENGLISH?
We shall never know who the first Englishmen were, or why they came. Perhaps they landed as traders, exchanging the rude produce of their forest homes for the advanced manufactures of Roman Britain. Perhaps they arrived as soldiers of fortune, drawn by the prospect of steady pay and the plot of land traditionally given to legionaries after twenty years’ service. Possibly, even in those very early days, they came as marauders: pillage had always been an attractive alternative to hacking a living from cold northern soil.
Whatever their motives, they brought with them something more precious than any booty a Germanic war chief could conceive. They had a way of ordering their affairs that was already diverging from the customs of other peoples. They were developing a notion of the relationship between a man and his tribe that was to become, in time, the greatest export of English-speaking civilization, its supreme contribution to the happiness of mankind. In the damp green island that was their new home, they would evolve theories of kingship and government, of property and contract, of law and taxation, that were to transform and elevate our species.
At the time, such a notion would have seemed preposterous. Britannia was among the more orderly and prosperous late Roman provinces. The Teutonic tribes who raided from across the North Sea were viewed with that peculiar mixture of scorn and fear that higher civilizations direct at savages.
But the power of those tribes was waxing as Rome’s waned. At first, the military authorities built a chain of forts along Britain’s eastern coastline to protect the fertile flatlands from seaborne barbarians. But the raids became more frequent as the resolve of the defenders wavered. All over Europe, Germanic tribes, whether as rebelling mercenaries or as invaders, were overturning the Roman order. In AD 410, the legions were recalled to defend the imperial capital, and the province of Britannia was left to fend for itself.
The largely Christian population found itself assailed from three directions: Irish clans attacked from the west, Angles and Saxons from the east, Picts from the north. It may well be that the Romano-Britons paid one of their foes to defend them from the other two, hiring bands of Anglo-Saxon mercenaries. That is the traditional account, though the earliest sources we have were written much later.
What is certain is that, during the fifth century, the fathers of the English—that is, tribes from what are now Germany, Denmark, and the Low Countries—began to settle in large numbers. By now there was no question about their motives. They came for territory. The numbers are almost impossible to establish. Anything between 20,000 and 200,000 people might have left their tangled forests for the new land during the fifth and sixth centuries, bringing with them the same grave-artifacts that are found along the Elbe. And bringing, too, the germ of what later generations would call Anglo-Saxon liberties.
What happened to the existing population of what is now England? Was it exiled or absorbed? The question matters, not least because it touches on whether Anglosphere values were, right from the beginning, developed in a multiethnic context. The debate still divides historians, though the consensus has shifted markedly over the past decade.
It was once believed that the Anglo-Saxons almost entirely displaced the natives. Surviving Britons were said to have been driven into Wales, Cornwall, northwest England, and southwest Scotland—as well as Brittany, which they conquered in their turn.
Two main pieces of evidence were advanced in support of this interpretation. The first was linguistic. The tongue of the Britons lived on in the western part of the island, which the Anglo-Saxons were late in reaching. One version, known as Cumbric, was heard until the eleventh or twelfth century in the British kingdom of Strathclyde, mainly in what is now southwest Scotland. Another, Cornish, didn’t entirely die out until the nineteenth century. Welsh is still spoken by around a fifth of the population of Wales.
Yet the common tongue that fathered these related idioms (the Brythonic languages, as linguists call them) left almost no trace in English. Had there been a racial intermingling, some historians maintain, we would expect to find a number of Celtic-derived words in our speech. In fact, there are almost none. And those few that there are—crag, tor, combe—tend to be words for geographical features found only in the northern and western parts of Great Britain: the parts that were absorbed last into the English-speaking kingdoms, and where the Anglo-Saxon influence was weakest.
The second piece of evidence is the sole work of British history surviving from the sixth century: De Excidio et Conquestu Britanniae, “On the Ruin and Conquest of Britain,” written by a Welsh monk called Gildas.
Gildas describes a genocide. He quotes a letter that the Britons sent pleadingly to Rome, describing their plight: “The barbarians drive us to the sea, the sea pushes us back at the barbarians: between these two deaths either we are drowned or our throats are cut.” Gildas, however, was writing a hundred years after the events he described. He was, moreover, writing with an agenda. Like most chroniclers of the period, he believed that God rewarded and punished whole nations. As Jehovah had unleashed the Assyrians against the Israelites, so He was now raising up pagan invaders to chastise Britain’s Christians for falling into sin. It suited Gildas’s purpose to treat the Anglo-Saxons as a divine scourge, a pitiless and unstoppable force.
Common sense suggests a more nuanced picture. Not only would some Britons have remained on their land as conquered vassals; some, almost certainly, would have allied with the newcomers. We know that leagues between Welsh and English chiefs were common in later centuries, and similar things happened across Europe where Germanic war leaders made pacts with local magnates. Population displacement typically occurs when there is a significant technological disparity between two peoples, which, in this case, there was not.
As for the linguistic evidence, there is no reason to suppose that the absence of Brythonic vocabulary in English signifies the extirpation of its speakers. Consider, as a modern analogy, my native Peru. Around 40 percent of the population there is of indigenous origin, 40 percent mixed, and 20 percent largely or wholly white. A portion of the native peoples—some 15 percent of the total population—still speak their aboriginal languages, Quechua and Aymara. The rest, including almost the entire mestizo population, speak Spanish. Peruvian Spanish is unadulterated—purer, in many ways, than the Spanish of contemporary Iberia. It contains as few Quechua-derived words as English contains Brythonic ones.
A future historian, working with nothing more than the linguistic evidence, might well conclude that the indigenous Peruvians had been slaughtered or driven out. He would be wrong. Although they adopted the customs and mores, the language and law, the religion and identity of the conquerors, they remained, and remain, the racial majority. It is not hard to imagine something similar having taken place in fifth- and sixth-century England.
Even before it became possible to sample DNA, many historians disputed the annihilation thesis. Place-name evidence suggested some British survival even in the Germanic heartland. For example, several English towns have the stem-name eccles (Ecclesbourne, Eccleston, and so on), which derives from the Latin word for church. There is an Eccles-on-Sea in Norfolk, raising the possibility that, even at the easternmost edge of England, there was a Christian (and therefore Romano-British) community large enough to sustain a place of worship.
Some English place-names are tautological, using Brythonic and Anglo-Saxon words for the same thing. In Buckinghamshire, for example, there are two nearby villages called Brill and Chetwode. Brill takes its name from the Celtic word breg, meaning hill: Breg-hyll became Brill. Chetwode is derived from the Celtic word cet, meaning woodland. The bastard place-names thus literally mean “Hillhill” and “Woodwood.”
It’s possible to infer from these names that the invading Saxons took such little interest in the aboriginal people that they didn’t even pick up their basic words for “hill” or “wood,” and so assumed that Breg and Cet were names for a particular hill, a particular wood. But it’s surely also plausible to see them as evidence of the kind of joint naming that happens in places where separate languages coexist. Look at the road signs in, say, Belgium, which refer to towns by their often very different French and Dutch forms: Mons/Bergen, for example. French and Dutch remain quite distinct, with only a few loanwords in the border regions, and these joint names advertise the presence of two language groups.
(Fans of The Lord of the Rings, incidentally, might find the names of Brill and Chetwode familiar. When the hobbits leave the Shire, the first place they visit is Bree under Breehill, lying by the Chetwood. J. R. R. Tolkien, a professor of Anglo-Saxon at Oxford, knew a thing or two about English toponymy.)
For a long time, the racial evidence was inconclusive. Even now there is no unanimity. Some historians still adhere to the annihilation narrative, though a growing number incline to a belief in intermingling. Over the past fifteen years, the relatively young field of population genetics has started to give us a clearer picture.
Most studies suggest that the modern English descend, not just from the pre-Saxon population, but from the pre-Celtic. The genetic sequences of contemporary Britons have a strong affinity to those of the Stone Age population. There was much excitement in 1997 when the mitochondrial DNA of “Cheddar Man,” the oldest skeleton in Britain, excavated near Cheddar in Somerset, and dating from 7150 BC, was found to match two of Cheddar’s present residents.
In 2007, having led a major study with Oxford University that tested more than six thousand samples, genetics professor Bryan Sykes concluded that only 10 percent of men “now living in the south of England are the patrilineal descendants of Saxons or Danes . . . that figure rising to 15 percent north of the Danelaw and 20 percent in East Anglia.” Another geneticist, Stephen Oppenheimer, argued that 68 percent of English DNA predates the first farmers in the fourth millennium BC, and that most of it came via Iberia.
Other studies, especially those based wholly on Y chromosome DNA (that is, the genetic material carried only in the male line), have implied a much more significant Anglo-Saxon influx. A major analysis in 2002 found that men in central England were genetically almost indistinguishable from men in Frisia on the Dutch coast, but markedly different from men in Wales. A project by University College London in 2011 reached similar conclusions, finding that half the men in Britain shared a segment of Y-chromosome DNA that is almost universal in Denmark and northern Germany.
Is there a way to reconcile these data? It’s a developing science and there are methodological differences in how the studies were conducted. Still, one conclusion that tends to emerge is that Y chromosome DNA surveys (that is, those recording only father-to-son descent) show a heavier Germanic trace, from which finding we can perhaps infer that Anglo-Saxon men took native wives—a pattern common to migration in every age and nation. We can reasonably conclude from the evidence, too, that Germanic ancestry becomes more diluted as you travel from east to west across Great Britain.
As we shall see, later generations of Englishmen were interested in their racial origins—though never, thank God, in the way that some of their Continental contemporaries were. During the English Civil War, many supporters of the parliamentary cause liked to see themselves as authentic Anglo-Saxons struggling to throw off an effete, Norman-descended aristocracy. In their minds, law, liberty, and representative government were part of their birthright as Anglo-Saxons, a patrimony that had come down to them from the tribal parliaments of primeval Germany described by Tacitus.
“Our progenitors that transplanted themselves from Germany hither did not commixe themselves with the ancient inhabitants of the country of the Britons,” argued the Roundhead leader John Hare in 1640, “but totally expelling them, they took the sole possession of the land to themselves, thereby preserving their blood, laws and languages uncorrupted.”
Similar arguments were made by some of the American Patriots at the time of the revolution. Thomas Jefferson saw Americans as true Anglo-Saxons, who had carried their freedoms into the New World and preserved them there in a purer form than in the old country. (Benjamin Franklin, it must be said, took a very different view, having a low opinion of Germans.)
The idea of a folkright of freedoms, stretching right back to the primitive forest assemblies of the earliest German tribes, animated writers throughout the Anglosphere right up until the 1930s, when the Nazi madness simultaneously discredited racial theory and made unfashionable the idea of kinship with Germans.
From what we can now see of the genetic evidence, such theories were, if not baseless, certainly exaggerated. The English were never a wholly Germanic race. The earliest Anglo-Saxons mingled, at least to some extent, with the ancient Britons. Their descendants were later to mingle with Danes, Normans, Flemings, Huguenots, Jews, Kashmiris, Bengalis, Jamaicans—and, in the New World, with peoples from every continent and archipelago. Intellectual exchange, rather than insemination, turned out to be the surest way of passing on ideas of how to organize society.
The multiethnic nature of the Anglosphere is not a modern phenomenon. In 1703, Daniel Defoe published The True-Born Englishman, which pulses with a self-mockery that few contemporary nations felt secure enough to indulge:
Thus from a mixture of all kinds began
That het’rogeneous thing, an Englishman:
In eager rapes and furious lust begot,
Betwixt a painted Briton and a Scot.
Whose gend’ring off-spring quickly learn’d to bow,
And yoke their heifers to the Roman plough:
From whence a mongrel half-bred race there came,
With neither name, nor nation, speech nor fame.
In whose hot veins new mixtures quickly ran,
Infus’d betwixt a Saxon and a Dane.
Anglo-Saxon values, as Richard Dawkins might put it, are a meme rather than a gene. They can be transmitted without any genetic vehicle. They explain why Bermuda is not Haiti, why Singapore is not Indonesia, why Hong Kong is not China (and, for that matter, not Macau).
These precepts had their genesis in the earliest Anglo-Saxon settlements, in the dark years, violent and unchronicled. From that era came three interrelated concepts that were to transform humankind. First, the idea of personal autonomy, including in contract and property rights; second, the notion that collective decisions ought to be made by representatives who are answerable to the community as a whole; third, the conception of the law as something more than a projection of the wishes of the ruler, as a folkright of inherited freedoms that bound the King just as surely as it bound his meanest subject.
Anglo-Saxon values made possible the transformation of our planet over the past three centuries, allowing extraordinary numbers of people to enjoy an unprecedented standard of living. Nowadays, those values are so widespread that we can easily think of them as an inevitable outcome of human development. It takes a major effort of will to imagine quite how revolutionary they must have seemed when first proposed.
FROM WITAN TO WATERGATE
When Bill Clinton narrowed his famously seductive eyes and told television viewers, “I did not have sexual relations with that woman,” he was defending himself against a procedure invented by the early English as a way to ensure that even the biggest man in the territory couldn’t bend the rules.
Impeachment had been used against some of the most powerful men in the kingdom, from Lord Latimer, impeached for corruption and collusion with the French in 1376, to Lord Melville, the war secretary, acquitted but effectively ruined after being impeached in 1806 for misappropriating public funds.
When congressional Republicans initiated proceedings against President Clinton, they weren’t invoking a device that happened to resemble that used in medieval England. It was precisely the same procedure, carried by Englishmen to Massachusetts and Virginia, enshrined in the early colonial charters, and later written into Article I of the U.S. Constitution.
Impeachment is an exceptional recourse, its rarity reflecting its gravity. English (and later British) MPs would often let decades, even centuries, pass without turning to it. The exception was the turbulent period between 1640 and 1642, when, after an eleven-year absence, Parliament was recalled by a desperate Charles I. The MPs of that era had amassed many grievances against their government during what they called the “eleven-year tyranny,” and they were determined to seek justice. Fully a quarter of all the impeachment cases heard in England date from those two years, when parliamentary leaders, consciously reviving what they saw as an ancient redress against autocratic rulers, launched proceedings against several of Charles I’s ministers.
The nostalgic Anglo-Saxonism of those MPs was a touch Romantic, but not entirely wrong. The idea that an assembly might remove an official—even a king—who had broken the law did indeed have pre-Norman roots. As we shall see, the Anglo-Saxon assemblies, the Witans, had on occasion rejected the claims of their monarchs on grounds of what would now be called abuse of office.
Ponder, for a moment, that astonishing fact. More than a thousand years ago, in England, the precedent had been set that a ruler might be judged before a representative assembly. The law, in other words, was not simply the sovereign’s decree; nor yet was it an interpretation of Holy Scripture. The law, rather, was a set of inherited rights that belonged to every freeman in the kingdom. The rules did not emanate from the government, but stood above it, binding the King as tightly as they bound the poorest ceorl. If the monarch didn’t uphold the ancient laws and customs of his realm, he could be removed.
English-speaking peoples still commonly, and exceptionally, talk of “the law of the land.” Not the King’s law, not God’s law, but the law of the land—a set of rights and obligations immanent in the country, growing incrementally, passed down as part of the patrimony of each new generation.
Of course, the law of the land presupposes a land: a recognized nation to which all freemen belong, and which has an organic identity that amounts to more than simply being a territory under a single government. If the sovereign himself is required to keep that law, it must have a higher source of legitimacy. And that legitimacy resides in the notion of inherited rules belonging to the nation or, in the phrase used by English-speaking peoples when they took to the field against kings who were deemed to have broken these rules—King John, King Charles I, King George III—“immemorial laws and customs.”
The story of the development of the rule of law in England, and of all the freedoms that, in consequence, spread across the Anglosphere, is thus the story of the development of England itself as a recognizable unit—as, in other words, a nation.
THE FIRST NATION-STATE
It is extremely rare to find justice, freedom, or representative government flourishing in any context other than a nation-state. All over the world, we see migration from states with arbitrary frontiers to states that contain more or less homogenous nations. The rise of the nation-state was a critical element in the success of the West from the eighteenth century onward. Yet, quite astonishingly, the process had taken place in England centuries earlier. From England’s national unification, and the sense of civic engagement that followed, came truly breathtaking developments.
Historians tend to think of the formation of the nation-state as an early modern phenomenon. In most of Europe, it was closely linked to the cause of democracy.
When, in the eighteenth and nineteenth centuries, radicals began to agitate for the idea of government of, by, and for the people, they found that they had immediately raised the question “What people?” Within what unit, in other words, was the democratic process to be played out?
The answer they offered was, in truth, the only possible one. Representative government works best when people feel enough in common with one another to accept government from each other’s hands. Democracy requires a “demos”: a unit with which we identify when we use the word we. As Charles de Gaulle was to put it, broadcasting to occupied France from London in 1942, “Democracy and national sovereignty are the same thing.”
Most democrats were nationalists in the sense that they wanted to align the units of government with the wishes of the people being governed. Until the nineteenth century, much of Europe was a patchwork of dynastic territories, created by conquest, marriage, and happenstance, and corresponding only incidentally with the preferences of local inhabitants. Democrats wanted to replace these arbitrary states with national units defined by common identity.
Multinational states, they argued, would never be properly democratic. Without national consciousness, people’s loyalty would be to something other than the state. As long as a large chunk of the citizenry didn’t want to belong at all, there would be repressive measures, and both democracy and liberty would suffer.
It’s certainly true that most of the big multinational states in Europe—the Habsburg, Romanov, and Ottoman monarchies, for example—were autocratic. Once their constituent peoples were given the vote, they tended to opt for national separation.
It doesn’t follow, of course, that all nation-states are democratic; far from it. It’s simply that the alignment of state and national frontiers creates the circumstances where representative government might develop.
Historians and political scientists are familiar with these arguments in the context of nineteenth-century Europe. But, perhaps fearful of seeming anachronistic, they never think to apply them to pre-Norman England.
Yet the development of parliament in Anglo-Saxon England—and in a handful of related, homogenous states, notably Denmark and Iceland—anticipated representative government in Europe by several centuries. This remarkable head start owed a great deal to the precocious emergence of a recognizable nation-state in England.
Italians didn’t fulfill their national aspirations until 1861, when Garibaldi handed a united peninsula (minus, for the time being, Rome and Venice) to King Victor Emmanuel II. Germans had to wait until 1871, when, in the exquisite Hall of Mirrors at Versailles, a group of princes and generals, resplendent in their stiff uniforms, proclaimed Wilhelm to be emperor of a second German Reich. Farther east, many European nations were under one form or another of foreign rule until 1918.
Yet the English had, on almost any definition, formed an independent and unitary nation-state by the tenth century. No other European country came close. Denmark, arguably the second, coalesced between the eleventh and thirteenth centuries. Iceland, colonized from the eleventh century and also separated by sea from its neighbors, was another early outlier. A case can perhaps be made for Portugal, which showed signs of national consciousness from the twelfth century onward. Most European nation-states, however, emerged in the age of muskets rather than that of battle-axes.
It’s important to define what we mean by nation-state. By the tenth century, the people of England had a palpable sense of common identity. As the historian Susan Reynolds put it: “The inhabitants of the Kingdom of England did not habitually call themselves Anglo-Saxons (let alone Saxons), but English, and they called their kingdom England. It was not a hyphenated Kingdom, but one whose inhabitants felt themselves to be one people.”
That identity sustained a unitary government whose legitimacy was acknowledged across a defined territory, and whose writ ran unchallenged. Tenth-century England was, by contemporary standards, affluent and powerful, maintaining a uniform coinage and, albeit with some regional variations, a common legal jurisdiction. It had had, since 669, a national church, with every see acknowledging the supremacy of the dioceses of York and, above all, Canterbury.
It’s true that, as in any nation-state, things were not entirely clear-cut. The Anglo-Saxons were continuing to expand westward, and the conquered Britons were called, by the English, “foreigners” or “Wealas,” which later became “Welsh.” There was a gradual process of assimilation, during which the Welsh in England were treated as a conquered race, not as full citizens: law codes recognized them as a separate category. On the other side of the country, there was also a gradual assimilation of the descendants of Danish invaders. And the northern border was fluid, with Scottish kings periodically accepting the suzerainty of their southern neighbors, and with an English-speaking population in southern Scotland expanding substantially in the eleventh century.
Every nation-state, however, has marginal ambiguities of this sort. James Campbell’s words, which open this chapter, stand. The English were a people: “gens Anglorum,” as the historian Bede put it in the early eighth century, “Angelcynn” or “Engelcynn” in their own tongue. And, long before any other Western nation, unless we count pre-Roman Israel, they had turned their nation into a state.
This unique development made possible the other peculiar characteristics of early England. There was not, as in most of Europe, a semi-independent hereditary aristocracy. The law was applied nationally by the King’s courts, not locally by territorial magnates (except possibly in the extreme north, where the evidence is patchy). Instead of running semi-autonomous dukedoms, powerful men would meet in a national council, which was in time to develop into a national parliament. Unity, combined with island geography, meant internal order. War bands were mobilized only when there was a war. The distrust of standing armies, which was to be such a powerful feature of later Anglosphere politics, can be traced right back to the organization of the Anglo-Saxon county militia, the fyrd.
England’s relative stability gave its inhabitants security in the tenure of their property. Because the state’s authority was undisputed, and the regime unlikely to be overthrown, men were commensurately ready to take their disputes to court instead of settling them by force. A unique legal system grew up, based on precedent rather than statute, and with rules on contract and ownership that differentiated England from most of Europe and Asia. It was a legal system that, as we shall see, later engendered modern capitalism.
Nation-states are remarkably secure vessels for freedom. The common identity of their citizens, their shared loyalty to a single authority, their patriotism, tends to enlarge civic society and reduce the need for state coercion.
These aspects of English particularism were to continue and, indeed, to strengthen as England merged with the other territories that make up the British Isles. Between the sixteenth and eighteenth centuries, Britain became a nation-state with (outside the Scottish Highlands and North Wales) a sense of identity as strong as that which had underpinned the rule of law in England. The same unique aspects of English-speaking civilization—common law, independent courts, representative assemblies, sanctity of contract—were carried overseas by Anglophone settlers and administrators. They were maintained in many former colonies after independence. Since so much follows from the early development of a nation-state in England, it is worth looking at how that development occurred.
THE MAKING OF ENGLAND
The early Germanic settlers came in kin groups and tribes, reflecting their varied origins on the Continent. These units eventually coalesced into distinct kingdoms. A thousand years later, British historians would refer to these kingdoms as “the heptarchy”—a phrase that remained current well into the mid-twentieth century, and which, even now, is not wholly archaic. But we shouldn’t imagine that there were seven neatly defined Anglo-Saxon realms. Borders shifted constantly. One regime might assimilate another. A conquered kingdom might retain a measure of identity and, after a while, reemerge under its old name.
At the end of the sixth century, there were twelve kingdoms. These later merged into seven, and by the time the Viking invasions began at the end of the eighth century, they had been consolidated into four: Northumbria, Mercia, East Anglia, and Wessex.
Long before the political unification of England, there had been some notion of hegemony over the totality of the English people. Sources refer to occasional overlordship of the English—ambiguously from the early seventh century, and definitively from the early eighth. The chronicles give that position a title: bretwalda—almost certainly a scribal mistranscription of Brytenwalda, Britain-Ruler. A bretwalda was a high king who had managed, for a time, to claim suzerainty over the other English monarchs.
These monarchs didn’t regard each other as foreign. They were evidently fond of genealogy, and would promulgate lengthy family trees, tracing their descent back through various early Anglo-Saxon kings to the ancient English gods, Dunor and Wotan. When they embraced Christianity, they cheerfully tacked on an extra few generations, stretching from Wotan through Noah to Adam. The purpose of such bloodlines was, in part, to emphasize their common kinship—a kinship they recognized with each other, but not with neighboring Irish, Welsh, Frankish, or Danish chieftains. Long before anyone thought of England, there existed a sense of an English people—“Anglii” to the scribes who wrote in Latin, “Angelcynn” to those who used the vernacular—defined above all by language. As in Italy and Germany more than a thousand years later, a common language and identity was the prelude to common political institutions.
In Germany, it was Prussia that led the unification process, in Italy, Piedmont. In England, more than a millennium earlier, it had been Wessex.
The ascent of Wessex came late. The first Anglo-Saxon kingdom to lift itself above its neighbors was Northumbria, whose heartland was what is now the northeast of England, and which was the dominant power in the seventh century. Mercia, rooted in the West Midlands, dominated the eighth. Only when these two monarchies had been reduced by Viking depredation did Wessex, their southern neighbor, take on the leadership role that was eventually to unify the English-speaking peoples.
When the eighteenth- and nineteenth-century radicals defined nationhood, they thought largely in linguistic terms—though they allowed that language was not always the whole story. A single people might speak different tongues while retaining a strong sense of patriotism, as in Switzerland. Conversely, different national identities might coexist within the same linguistic continuum, as among the various speakers of Serbo-Croat. Language, though, was their usual starting point, since it was a clear demarcator.
Nation-states are sustained by their citizens’ awareness that they have something in common that they don’t share with other peoples. Most national movements, whether they agitate for the gathering of a people into a single state or for their independence from another state, are in practice defined with negative reference to a foreign identity. For the Italians, that foreign identity was Austrian. For the Germans, it was French.
Ninth-century Englishmen were no exception. Indeed, they had more cause than most to define themselves against the foreigners who had come among them, for those foreigners were the most feared and reviled people in Europe at that time: Vikings.
At the end of the eighth century, raiders from Scandinavia began to ravage England’s eastern shore. In 793, they sacked the Holy Isle of Lindisfarne, no doubt wondering at their luck in happening upon a civilization that heaped gold and silver treasures in coastal monasteries whose guardians were forbidden by their religion to fight. Like the Angles and Saxons before them, they soon turned from pillage to invasion, seizing tracts of land in northern and eastern England.
As far as we can establish, the first English settlers—the Angles, Saxons, and Jutes—had been of similar stock, speaking cognate dialects and following shared customs. But three hundred years of separate development had sundered them from the Germanic peoples on the other side of the North Sea. The Anglo-Saxons had converted to Christianity; the Danes had remained pagan. The two peoples spoke related languages but would no longer have been able to understand each other in ordinary conversation. Here, in short, was an alien presence that made the English acutely aware of what they had in common.
One by one, the Northmen conquered the Anglo-Saxon kingdoms. They swallowed up East Anglia. They overran Northumbria, putting a puppet ruler on its throne. They seized half of Mercia, leaving the other half to throw in its lot with Wessex.
They came close to taking Wessex, too, but were eventually defeated by the only English monarch ever to have been named “the Great”: King Alfred. A pious and thoughtful man, who dreamed of making his throne a focus of learning, Alfred came close to losing it. Early in his reign, caught by a surprise Danish attack, he was forced to flee to the marshes of Somerset, desperate and deserted. It was at this time, according to a later chronicler, that he was supposed to have burned some griddle cakes that a swineherd’s wife, unaware of his royal identity, had asked him to keep an eye on. The story is apocryphal: berated by the angry wife, Alfred is said to have stopped feeling sorry for himself and remembered his duty to his countrymen. What is not apocryphal is that, from that moment, he began winning battles. The Danish advance was rolled back.
The reconquest of England was not a short or smooth process. Alfred’s modest territorial gains were built upon by his descendants. His grandson, Athelstan, established his sway over a territory roughly congruent to modern England, but wars between Anglo-Saxon and Danish kings were to continue right up to the Norman Conquest. Nonetheless, the birth of England as a nation-state can be dated to Alfred’s wars. In 876, according to the Anglo-Saxon Chronicle, “all the English people who were free to give him their allegiance [in other words, were not under Danish occupation] owned Alfred as their King.”
This is not the first reference to the English people. The concept of an English race, an Angelcynn, had existed from at least the eighth century, possibly earlier. What was new was the idea that all the Angelcynn, by virtue of their common identity, should recognize a single sovereign.
We shouldn’t overstate our case. Victorian historians sometimes wrote teleologically, assuming that the emergence of an English state was inevitable, and viewing the absorption of the Danes into it as part of an inexorable historical process. But England in the ninth and tenth centuries was also part of a looser Nordic community. Between 1018 and 1035, England had a Danish king, Cnut, who also made himself ruler of Norway and part of Sweden. Indeed, given the respective size of the English, Danish, and Norwegian populations, we can speculate that, had William the Conqueror not wrenched it out of the Scandinavian world, England might have become the dominant Nordic power. There is evidence, for example, that Danish bishops were acknowledging the authority of the Archbishop of Canterbury, and English currency was common tender in eleventh-century Denmark.
Nonetheless, the concept of Englishness, and of an English state, remained strong from Alfred’s time onward. Strong enough, indeed, to absorb the descendants of the Danes who had arrived as conquerors.
When Alfred drove the Vikings out of Wessex, the eventual peace treaty allowed for a large part of northern and eastern England to retain a Danish system of law and government, hence its name: the Danelaw. The Danelaw, with its capital at York, would last for seven decades before eventually joining the English kingdom (its inhabitants, of course, would not have been wholly of Danish descent, but would have included many Anglo-Saxons).
Our language altered in interesting ways during the period of Anglo-Danish cohabitation. Although the two tongues were largely mutually incomprehensible, they had a common root, and their speakers might make themselves understood by speaking a simplified pidgin. Old English and Old Norse often had similar basic words, but their suffixes and prefixes rendered communication almost impossible. It was only by dropping the different ways to conjugate a verb, the different forms of irregular plural, the different noun cases, that Saxons and Danes could make themselves readily understood.
It was during this period, in the Danelaw, that English began its move toward its modern form. Compared with most other languages, English is uninflected. We give meaning to a word by putting other words around it, not by altering its form. In most of our verbs, only the third-person singular is different (I eat, you eat, he eats, we eat, you eat, they eat). Many irregular plural noun forms that existed in Old English were swept away during this period, to be replaced with the simple rule, in most cases, that you add an s. All these changes, along with a substantial expansion of our vocabulary through the annexation of Viking words, date from the absorption of the Danes.
With this linguistic assimilation came an assimilation of outlook and identity. The descendants of the Vikings were soon looking to English kings to defend them from later waves of Nordic sea raiders. Within a century, they were speaking English and self-identifying as Angelcynn.
It’s not hard to see why. The tenth century was the high point of the early English state: law-governed, unified, and wealthy, it began to develop several traits that set it apart from the neighboring landmass. The characteristics that led, in time, to parliamentary democracy, independent justice, and personal freedom were already there, pulsing in the womb. Let us now consider the most important of those characteristics: the rule of law.
THE LAW OF THE LAND
The first thing that strikes the historian, as he surveys the written records of the Anglo-Saxons, is that they were a litigious people. A great deal of their time was taken up with writing legal codes, some of them in the form of royal decrees, others as restatements of inherited, traditional laws.
They might have arrived as violent raiders but, within a remarkably short time, they formed the habit of seeking to settle their quarrels peacefully, by laying them before a court. That they did so tells us a great deal about the homogeneity and orderliness of early English society.
The cultural and linguistic unity of England was reflected in a universal legal system. Lawlessness tends to multiply when the government’s authority is weak or disputed, and England was the most stable and united nation-state in Europe. On the Continent, seigneurial justice was common. The great magnates were the law on their own estates. But England, before the Normans came, had no feudal aristocracy. It had its great men, as all warrior societies had, and many of them held large estates, though these tended to be fragmented across many counties. But the great men never constituted a hereditary caste with legal privileges—such as, to cite the most notorious example from Europe, exemption from taxation. They were as subject to the law of the land as anyone else.
We can see, in its genesis, the extraordinary idea of equality before the law. James Campbell cites the case of a letter from Queen Edith, the widow of Edward the Confessor, written to the court of the hundred of Wedmore in Somerset, and asking for “a just ruling concerning Wudumann, to whom I entrusted my horses, and who has for six years withheld my rent.” We don’t know which way the Wedmore court decided. But it is hard to imagine a similar case anywhere else in the world in the eleventh century. Here is the greatest lady in the kingdom petitioning a minor public court for justice in a personal matter.
It wasn’t until the mid-twelfth century, in the reign of Henry II, that the term “common law” was used. But the concept was Anglo-Saxon. A wealth of recent research, above all by the foremost historian of the period, Patrick Wormald, has shown that the laws encoded by the Normans largely predated the Conquest, and that the principles and practice of common law survived almost unchanged at the level of the county and its chief subdivision, the hundred.
Almost a third of the human race now lives, wholly or partly, under a common-law system. Along with the English language, the common law is the main unifier of the Anglosphere. It applies in most former British territories—though not in Quebec nor yet, curiously enough, in Scotland. It is used, too, in Israel. A variant of it, which grew up alongside its English cousin from common ancestry, can be found in Scandinavia.
What distinguishes the common law from the Roman law that predominates in Continental Europe and its colonial offshoots? Chiefly this. The Continental legal model is deductive. A law is written down from first principles, and then those principles are applied to a particular case. Common law, to the astonishment of those raised in the Roman or Napoleonic systems, does the reverse. It builds up, case by case, with each decision serving as the starting point for the next dispute. It applies a doctrine known to lawyers as stare decisis: previous judgments should stand unaltered, serving as precedent. Common law is thus empirical rather than conceptual: it concerns itself with actual judgments that have been handed down in real cases, and then asks whether they need to be modified in the light of different circumstances in a new case.
It is therefore sometimes known as “judge-made law,” but, as the philosopher Roger Scruton, who himself trained as a barrister, points out, “the common law is no more made by the judge than the moral law is made by the casuist.” It is more useful to think of the law being discovered in stages. Just as a good man is not necessarily a skilled philosopher, so the common law recognizes that doing the right thing is not necessarily the same as explaining the principles that make it right. We often know what is the correct way to behave without being able to put our reasons into words. The same is true of legal disputes. An individual case might have an obviously just remedy, one that conforms to everyone’s idea of fairness, and yet whose resolution doesn’t translate neatly into a general principle. The pragmatic nature of the Anglosphere peoples, their dislike of purely theoretical reasoning, was built from the first into the way they made—or, rather, discovered—their laws. The law didn’t realize an abstract principle; rather, the principle was pieced together in stages from actual rulings.
The notion of “the law of the land”—of a law, that is, that was the property of all, not a device of the ruler—could be seen in the nature of the criminal justice system. Courts were dispersed and local. The more important cases were tried at county level, the lesser at the level of the smaller unit, the hundred. The most important cases of all were referred up to national level, which eventually gave rise to the medieval development of a high court, whose judges would tour the county courts in turn (in a “circuit”). Highest of all was the Anglo-Saxon Witan, the supreme council that would adjudicate the cases of national importance.
At an early stage, the most important cases began to be tried in courts that included a selection of ordinary citizens: a jury. It’s true that Anglo-Saxon juries were very different from the ones that meet in Anglosphere countries today. Their role was as much to weigh the character of the accused as to make a judgment on the basis of evidence. Nonetheless, they served to domesticate the law, emphasizing that it was there for the whole country, and was not simply a tool of government. As Tocqueville, who saw the common law as the chief guarantor of Anglo-American freedom, put it, “The jury is the most direct application of the principle of the sovereignty of the people.”
The jury system, while flawed, as all human mechanisms must be, is yet a pillar of Anglosphere liberty. It ensures that questions of fact are distinguished from questions of law, that the assumption of innocence is no mere formality, and that the prosecution must establish its case beyond reasonable doubt. It also prevents the law from straying too far from the commonsense prejudices of the population, since juries refuse to convict when a crime could result in a disproportionate penalty. Above all, it involves the entire nation in the administration of justice. Jury service was—and remains—an obligation. The law thus rests, in practice as well as in theory, on every household in the country. Truly, it is the law of the land.
Being the law of the land, rather than of the King, Anglo-Saxon common law had four further properties that have served, to this day, to distinguish it from most civil law systems. First, it laid particular emphasis on private ownership and free contract. There was no sense, as there was and still is in many European countries, that tenure was the state’s to determine, and that property rights were contingent. The law came up from the people, not down from the government.
Even now, most European legal systems limit an individual’s liberty to dispose as he pleases of his goods. When he dies, for example, a proportion of his estate is generally reserved for surviving family members. England was exceptional in elevating the wishes of the individual, even when dead, above the perceived need of the surviving community—a peculiarity that, as we shall see, had huge consequences, making possible the trusts and foundations that are the basis of civic society, and creating an individualist, rather than a peasant, society in the countryside.
Second, common law is based on the notion that anything not expressly prohibited is legal. There is no need to get the permission of the authorities for a new initiative. Again, even now, we see this consequence of the difference between British and Continental practice. British Euro-skepticism owes a great deal to a resentment of what is seen as unnecessary meddling, but, to the Eurocrat, “unregulated” is more or less synonymous with “illegal.” I see the difference almost every day. Why, I often find myself asking in the European Parliament, do we need a new EU directive on, let’s say, herbal medicine? Because, comes the answer, there isn’t one. In England, herbalists have been self-regulating since the reign of Henry VIII. In most of Europe, such a state of affairs could never have come about.
Third, the invigilation of the law of the land was everybody’s business. The policeman was and is a citizen in uniform, not an agent of the state. He has no more legal powers than anyone else, except to the extent that those powers have been temporarily and contingently bestowed on him by a magistrate. In many parts of England, law officers were directly answerable to their communities—something that is now once again true of the entire country.
In November 2012, England introduced—or, rather, reintroduced—direct accountability for its law officers. Police forces were made accountable to elected county commissioners. I had had some role in promulgating the policy, and had originally wanted the commissioners to be called sheriffs, as in the United States. In a sad comment on how the English have lost their sense of history, the Home Office dropped that name when its focus groups told it that the title sounded “too American.” In fact, the shrievalty is one of many institutions that are often thought to have American roots but originated in England.
Finally, and most important, the fact that the law was national rather than monarchical implied the need for an ultimate popular tribunal to determine it. That tribunal emerged in Anglo-Saxon times, reemerged after the calamity of the Norman invasion, and survives to this day as Parliament, which, on some formal occasions, still calls itself the High Court of Parliament.
The Anglo-Saxon Witan grew out of the lesser shire and hundred courts as the supreme council of the nation. The inferior assemblies, though they were conceived as courts, also had many of the characteristics of a parliament. They were gatherings not only of big landowners and clergy but also of all freeholders. In addition to legal disputes, they would often settle the distribution of the tax burden in their locality. They became, in effect, local councils: places where the affairs of the shire or hundred were publicly deliberated. As England became a united nation, these attributes were replicated at national level by the Witan, which in time reemerged under the Normans as the Parliament, which sits to this day.
It is often forgotten that Parliament began as, and in a few formal senses remains, a supreme court. The great constitutional upheavals in England, from Magna Carta in 1215 to the Glorious Revolution of 1688, were experienced as legal crises, and all were eventually settled by new legal charters. It is to the story of Parliament that we now turn.
THE WITAN OF THE ENGLISH PEOPLE
Two thousand years ago, the Roman historian Tacitus told his countrymen something quite extraordinary about the barbarians who lived beyond their frontiers. The primitive German tribes, he wrote, were in the habit of deciding their affairs through open-air clan meetings. Their chiefs were not autocrats, but governors by consent. Their rule rested upon auctoritas (the ability to inspire), rather than potestas (the power to compel). Their peoples were not subjects, but free and equal participants in the administration of their affairs.
Tacitus’s Germania was hugely popular in the Anglosphere during the seventeenth and eighteenth centuries—as it was in Germany, Scandinavia, and, indeed, France. (Montesquieu quoted it frequently and approvingly, convinced that the French were of predominantly Frankish rather than Gallic origin, and thus Germanic, too.) The idea that free parliaments were a prehistoric birthright of the Teutonic peoples was naturally flattering to their descendants—especially those who were arguing for a more democratic form of government in their own times.
It was true that Tacitus, like most historians, had been writing with an agenda. By holding up the German savages as models of republican virtue, he hoped to shame his Roman fellow citizens out of what he saw as their authoritarianism and servility. But this, of course, only endeared him the more to British, American, and German writers, sustaining their sense that they were by inclination and temperament more suited to liberty than the Latin nations were.
During the twentieth century, such views became unfashionable. They were deemed out of joint with the times: jingoistic, anachronistic, even racist. And yet no one has ever been able convincingly to show that Tacitus was wrong. Tribal meetings do indeed seem to have been a common feature of very early Germanic society. Later sources take them for granted, as part of the immemorial way of doing business. While their composition and functions varied, certain core tasks—the confirmation of kings, the settlement of legal disputes, the allocation of taxation—crop up in many of the post-Roman Germanic kingdoms. It seems vanishingly unlikely that these proto-parliaments emerged through a process of parallel evolution rather than from a common tradition.
Certainly the sources show the early English kings ruling through councils of their people. In the 620s, for example, Edwin of Northumbria changed his religion following a meeting with the “wise men” of his realm—much as the Tudors were to do when they got Parliament to ratify the adoption of Protestantism. We read of Ine of Wessex issuing laws through councils of his bishops and nobles in the 690s. We know, too, that these councils, especially at county level, had a role in allocating taxation. One early Mercian source concerns an exemption from the share of the fiscal burden determined by a local folcegemot (“people’s meeting”).
It would be absurd, of course, to claim that these tribal councils were democratic legislatures. Nonetheless, as the Anglo-Saxon kingdoms developed and consolidated, we can see several features that these meetings of “wise men” (witan) had in common with later, recognizably parliamentary, assemblies.
First, they were the forum in which the sovereignty and legitimacy of the regime were affirmed. They were, for example, one of the rare occasions on which monarchs would physically wear their crowns and, later, carry scepters and other kingly regalia. The same remains true in Britain today.
Second, they were there to ratify the most important decisions in the kingdom: large grants of land, for example, and the resolution of major legal disputes.
Third, at least by the ninth century, they became not just frequent but regular, often holding their sessions to coincide with the major Christian festivals: Easter, Christmas, and Whitsun. (These dates still define the parliamentary calendar in many Anglosphere countries.)
Fourth, they brought together the great ecclesiastical and temporal lords as well as some of the second-order landowners. Bishops, ealdormen (county magnates), and thegns (lesser landowners) would meet jointly in session. This ancient composition can yet be glimpsed vestigially in the British House of Lords, which contains bishops as well as ninety-two hereditary peers who, in a very British compromise, survived the expulsion of the rest of their caste in 1998. Certainly the composition resembles that of later medieval assemblies, which were undeniably parliamentary in character. As J. R. Maddicott, the chief authority on the development of Parliament, says of the tenth-century Witan: “Substituting ‘earls’ for ‘ealdormen’ and ‘barons’ for ‘thegns,’ we are not so very far from the general look of an early parliament.”
We can observe the formalization of the institution in the name. In the sources, meetings of witan (“wise men”) become “the Witan.” As early as the 880s, Alfred’s council is described as “ealles Angelcynnes Witan”: “The Witan of all the English.” In the later sources (though much more rarely), we read of something more apparently regular: “Witenagemot,” “The Meeting of the Witan.” It was this last variant that the Victorians, keen to establish the longest possible pedigree for the Parliament of their own day, favored. And, as usually happens, there was a backlash by a later generation of historians, who saw such pedigrees as smug and nationalistic. More recently, though, a sense of perspective has returned.
“That representative institutions have their roots in the dark-age and medieval past is not an anachronistic view; rather it is fully demonstrable,” says James Campbell, professor of medieval history at Oxford and an unmatched authority on the late Anglo-Saxon state. “It does indeed look as if the history of constitutional liberty has important beginnings in Anglo-Saxon England.”
J. R. Maddicott, whose Origins of the English Parliament is the standard work on the subject, contrasts the Witan to other European assemblies and concludes that it was qualitatively different in its more representative composition, in its powers of taxation, and, above all, in its survival. “In other parts of the West, the Germanic legislative tradition died out in the tenth century. Its energetic preservation and promotion in England was quite exceptional.” The Witan was not only a partner in royal lawmaking; it was also a guardian of the established law, willing, on occasion, to lay down terms to the King. “We need not baulk,” says Maddicott, “at the notion of English exceptionalism.”
This exceptionalism is most clearly visible in the dynastic disputes of the early eleventh century, before the catastrophe of the Norman Conquest.
Early English kingship had always been partially elective: notions of legitimate succession and divine right came later. Before the Norman Conquest, the coronation would take place only after the succession had been determined by the Witan. Thus, for example, Alfred’s son Edward was “chosen as King by the great men of the kingdom.” Eadred became king in 946 “by the election of the chief men.”
An element of reciprocity was established by the coronation oath, which makes its first appearance at King Edgar’s consecration in Bath in the year 973. It was, and for a long time remained, the only part of the ceremony conducted in English rather than Latin, suggesting that it was intended to be understood by all present. The promises that King Edgar gave on that occasion were remarkably similar to the ones given by his descendant, Elizabeth II, 980 years later: to defend the land, uphold its laws, protect its church, and rule justly.
Here, in fetal form, is the idea of government by contract: the notion that rulers and ruled are bound by a specific agreement and that, if the ruler breaks his part of the bargain, the deal is off. Contracts were and are enormously important in Anglosphere societies. They informed people’s understanding of law, business, religion, and politics. They eventually became, above all through the writings of John Locke, the basis of the predominant Anglosphere theory of government. The state was held to be an expression of a primeval contract made in the remote past by our ancestors: what Locke called the “original compact.” Locke’s idea took substantial form in the U.S. Constitution and later spread throughout the free world.
The really critical innovation, though, was the notion that the contract should be enforced by a representative assembly. Plenty of European medieval kings took coronation oaths. The oath, like the moment of anointment, was religious in inspiration. It was a promise made to God in the presence of the country’s chief bishop, who would carry out the most important part of the ceremony when he anointed the head of the new monarch with oil. This moment, the unction, remains at the center of the coronation ceremony. When the present queen was crowned sixty years ago, many of her subjects bought televisions so as to be able to watch the pageant. The only moment that was hidden from the cameras was the unction.
What was truly exceptional was not the monarch’s oath, but the idea that he might be held to it by representatives of his people. The King wouldn’t be the sole judge of whether his promise to uphold the laws had been kept. That task would fall to the Witan.
In 1014, something almost miraculous took place. England had been ruled by one of its most unfortunate kings, Æthelred, known to history as Æthelred the Unready. Unready is a literal transcription of his contemporary nickname, “Unred,” meaning “Ill-Advised,” for Æthelred ruled during a period of intense Danish attacks and repeatedly bought the invaders off with gold. This gold had to be levied from his people through heavy taxation—something that has never been popular in the Anglosphere. Worst of all, the bribes, known as Dane-geld, didn’t work. The Danes would accept the payment and promise to go home, only to return the following campaign season and demand more. As Kipling was later to put it:
And that is called paying the Dane-geld;
But we’ve proved it again and again,
That if once you have paid him the Dane-geld
You never get rid of the Dane.
By 1014, a series of disasters had overtaken the English. The Danes had seized London, forcing Æthelred to flee into exile in Normandy. What happened next was, at that time, without precedent in the world. The Witan offered Æthelred the chance to return to his throne only if he agreed to abide by their conditions. Specifically, there were to be no more excessive taxes. The old laws—the first appearance of that English notion of “immemorial custom” or “the good old laws”—must be upheld. And the King must pledge to be guided by the counsel of the Witan in future.
It was a remarkable, though curiously unremarked, development. When tracing the story of constitutional liberty in the English-speaking world, specifically in the form of the assertion of representative government over monarchy, historians point to Magna Carta, to the victories of Simon de Montfort, to the English Civil War, to the Glorious Revolution, and, finally, to the American Revolution. Yet here, fully two centuries before Magna Carta, we find a foreshadowing of the Glorious Revolution of 1688: a king being invited conditionally to the throne. The law is deemed to be bigger than he is.
It might be argued, of course, that the events of 1014 were atypical. The kingdom was imperiled, and its monarch was in an exceptionally weak position. Much the same, though, could be said of all the milestones just mentioned. In any case, the truly extraordinary thing about the recall of Æthelred is that it was not a one-off, but the beginning of a new constitutional order.
We know this because, when Æthelred died two years later, the English throne was offered to the Danish king Cnut on the same conditional terms. Cnut undertook, apparently willingly enough, to refrain from excessive taxation, to punish abuses by his officers, the reeves, and to uphold the law of the land.
What is perhaps most remarkable of all is that, in these compacts, the Witan was seen to have a representative function: it spoke, not just for its members, the thegns and ealdormen, but for the nation as a whole. The invitation to Æthelred to return from exile came from “all the Witan,” but his reply was addressed to “all the people.” He was, in other words, speaking through the assembly to the nation it represented.
Likewise, when Cnut was conditionally offered the throne by the Witan two years later, his acceptance took the form of a promise to uphold his side of the bargain. It was written in the form of a letter, in the English language and probably intended to be read out at shire courts, addressed to “his archbishops and diocesan bishops and Earl Thorkel and all his earls, and all his people, whether men of a twelve-hundred wergild or of a two-hundred, ecclesiastic and lay, in England, with friendship.” The concept of what later generations were to call “virtual representation” can already be glimpsed.
When Cnut himself died in 1035, there was a full meeting of the Witan (“ealre witena gemot”) at Oxford to determine who should rule next. It is no longer possible to see such meetings as an exceptional response to a disputed succession: they had become the norm.
Thus, in 1041, when Edward the Confessor was recalled from Normandy and offered the throne, he was met at Hurst Head on the Hampshire coast by “the thegns of all England” and told that he might be awarded the crown if he swore an oath to uphold the laws of the time of King Cnut—which had already, in the minds of Englishmen, become “the good old law” to which their descendants would regularly demand that their sovereigns conform.
Ponder for a moment the astonishing nature of that development. Here is a king being met on a sandy spit of land on the Solent and presented, not with a set of arbitrary demands, but with an already familiar—we might almost say constitutionally regular—requirement that he accept the law as defined by the body that speaks for the nation.
England was, by contemporary European standards, a prosperous enough place. But these were nonetheless wretched times for all humanity. Life expectancy in England, for those who survived infancy, was around 42: a study of sixty-five burials from between AD 400 and 1000 found no one who had lived past forty-five. Literacy was confined to a minuscule number of monks and scribes. Medical science was unbelievably primitive. Life for almost the entire population consisted of backbreaking labor seven days a week. The entire population of the British Isles was no more than two million. Yet we can discern something recognizable as modern constitutional government. The King is not above the law (rex lex), but rather the law is above the King (lex rex). The interpretation of that law is not left to the sovereign’s conscience, nor to the clergy, but is in the hands of a representative body that self-consciously speaks for the nation as a whole.
More than seven centuries later, drawing up the Massachusetts Constitution in 1780, John Adams was to come up with one of the finest and simplest definitions of constitutional government. The powers of the commonwealth were to be divided and balanced, he wrote, “to the end it may be a government of laws, not of men.” Though they would not have put it in such terms, the earliest speakers of his tongue plainly had some notion of what he was driving at.
Tenth-century England had undeniably started down the track to constitutional liberty. What might have happened had it continued on that path we’ll never know, because, in 1066, it was brutally wrenched out of the Nordic world and subjected to European feudalism. Harold Godwinson, an English nobleman with scant claim to the throne, but with the unequivocal backing of the Witan, was deposed by William of Normandy, who had his own ideas about the duties owed to a king. It was a calamitous defeat for England, for the Witan, and for the development of liberty. Indeed, the next six centuries can be seen in one sense—and were seen by many of the key protagonists—as an attempt to reverse the disaster of 1066.